Brosnan v. Kramer

[37]

VAN DYKE, J.

The appeal is from the judgment, with a bill of exceptions.

The main contention on the part of the appellants is, that the court below erred in sustaining the demurrer to certain affirmative defenses set up in the answer.

The action is to recover an alleged balance due on a certain written lease of premises in the city of Eureka. The lease in question was entered into between Mrs. Olivia Monroe, as lessor, and said defendant Kramer, as lessee, January 13,1892, by the terms of which the premises in question were let for the period of eight years, commencing January 1, 1892, and ending January 1, 1900, at the monthly rent of $160, payable monthly in advance, on the first day of each and every month. Defendant Lundblade became surety for the due execution of the same upon the part of the defendant lessee. The lease contained this clause: ‘

‘

And the said party of the second part does hereby promise and agree to pay to the said party of the first part the said monthly rent here reserved, in the manner herein specified, and not to let or underlet the whole or any part of said premises, or make or suffer any alteration to be made therein, without the written consent of the said party of the first part; and not to assign this lease without the written consent of the said party of the first part.”

The lessor, Mrs. Monroe, died, November 11, 1893.

By one of the separate affirmative defenses set up in said answer, it is alleged, that on April 22, 1892, the said defendant Kramer, for good and valuable consideration, entered into an agreement with Edward Kramer, Clarence Kramer, and Ralph Kramer, whereby the said defendant Kramer sublet the premises set forth in the lease as follows: To Edward Kramer, from July 1, 1892, to July 1, 1893; to Edward Kramer and Clarence Kramer, from July 1, 1893, to July 1, 1894; to Edward Kramer, Clarence Kramer, and Ralph Kramer, from July 1,1894, to July 1,1900; that on said July 1,1892, said Edward Kramer went into possession of the said premises, and from said date to the present time Edward Kramer, Clarence Kramer, and Ralph Kramer have been in possession of the said premises, in accordance with the terms of said agreement, heretofore stated; that said Edward Kramer, Clarence Kramer, and Ralph Kramer, in consideration of said agreement, agreed to pay the rent as it accrued on